A High Court in Zimbabwe has struck down a law that previously prohibited safe abortion for underage girls and married women who are victims of rape. The ruling, delivered by Justice Maxwell Takuva, declared Section 2(1) of the Termination of Pregnancy Act [Chapter 15:10] unconstitutional and invalid.
This landmark decision followed an application by Women in Law Southern Africa and Talent Forget, who challenged Health Minister Douglas Mombeshora, the Parliament of Zimbabwe, and Attorney General Prince Machaya. The applicants were represented by lawyer Tendai Biti.
Justice Takuva emphasised the significance of the case, highlighting the high rates of teenage pregnancies in Zimbabwe, which often lead to illegal abortions and maternal deaths. The applicants also argued that marital rape, now criminalised, should warrant access to safe, legal abortion.
Current Abortion Law in Zimbabwe
Under Section 4 of the Termination of Pregnancy Act, abortion is permitted only in cases where:
- The pregnancy endangers the life or physical health of the woman.
- There is a serious risk of the child being born with severe physical or mental disabilities.
- The pregnancy is a result of unlawful intercourse, excluding marital rape and intercourse with minors under 18.
Justice Takuva noted the exclusion of marital rape and pregnancies in minors from the definition of “unlawful intercourse” as unconstitutional. He ruled that this exclusion violates the rights of children under Sections 81(1)(e)(f) and 18(2) of the Constitution and constitutes torture, cruel, and degrading treatment under Section 53.
Dignity and Human Rights
Takuva upheld the argument that denying safe abortions undermines the dignity of both adolescent girls and married rape victims, violating the Constitution’s guarantee of inherent dignity and its protection. He stated, “The right to dignity is foundational and has been equated with the right to life.”
Impact of Precedents
The judge referenced the Constitutional Court’s rulings in the Mudzuri case, which outlawed child marriages, and the Kamwenda case, which raised the age of consent to 18, concluding that sexual intercourse with minors is inherently unlawful. He also pointed to legislative amendments outlawing marital rape, noting these changes necessitate revising Section 2(1) of the Act.
Health and Poverty Concerns
Takuva highlighted the severe health risks of child pregnancies, citing studies showing that girls aged 10–14 are 5–7 times more likely to die in childbirth compared to women over 20. He added that poverty is a significant driver of teenage pregnancies and child marriages, creating a “vicious cycle” of poverty and hardship for young mothers and their children.
The ruling, which awaits confirmation by the Constitutional Court, marks a significant step in addressing reproductive health rights and gender equality in Zimbabwe.
